from the celebrating-fair-use dept

Jon Stewart's announcement on February 10 that he will be retiring from The Daily Show later this year has been met with tributes to his comic genius and his impact on political discourse. But these tributes have overlooked the legal doctrine that has enabled Stewart to be so effective: fair use. (This is my second post this week about the importance of fair use to popular culture; on Tuesday I wrote about how the Fifty Shades of Grey trilogy was first written as fair use-dependent fan fiction based on the Twilight vampire series.)

Stewart's most powerful critiques result from his juxtaposing clips of politicians and commentators on news broadcasts to demonstrate their hypocrisy. He'll contrast a clip of a Fox News commentator expressing outrage at President Obama taking a particular action with a clip of the same commentator praising President Bush for taking a similar same action. Stewart also uses montages of clips from CNN and other news networks to demonstrate their simultaneously sensationalistic and superficial coverage of disasters and trials. But for fair use, Stewart's rebroadcast of these clips would be willful copyright infringement, subject to statutory damages of up to $150,000 per clip.

Jon Stewart's heavy use of clips for the purpose of humorous political criticism has inspired other comedians to emulate him, most notably his former "correspondents" Stephen Colbert on The Colbert Report and John Oliver on Last Week Tonight. Stewart's reliance on clips no doubt has also encouraged the growth of the remix culture online, where individuals combine clips of preexisting works for the purpose of political or artistic expression.

Stewart's reliance on fair use likely made him progressive on other copyright matters. He supported fans distributing excerpts of The Daily Show online, he questioned the position of Viacom (the owner of Comedy Central, the channel that carries The Daily Show) in its litigation with YouTube, and he opposed SOPA.

Additionally, Jon Stewart's fair use of clips has had a positive impact on policymakers. The Daily Show is perhaps the easiest example to give lawmakers and their staffs of the importance of fair use. A reference to The Daily Show makes them instantly understand how fair use functions, in Supreme Court Justice Ruth Bader Ginsburg's words, as one of the copyright law's built-in accommodations to the First Amendment. Further, The DailyShow demonstrates clearly that large media companies (e.g., Viacom) rely on fair use.

Jon Stewart has not announced what he will do after he leaves The Daily Show. But it is hard to imagine that the greatest practitioner of fair use in this generation will not at some point embark on another venture that employs fair use.

from the hot-news? dept

In January, we wrote about Dow Jones suing Ransquawk, a UK-based service that sends out news alerts to clients. Dow Jones used the antiquated and obsolete concept of "hot news" misappropriation, since there was no actual copyright claim to be made. For years, we've discussed the problematic nature of the hot news doctrine, which some news companies just can't let go of using. In May, we noted that Ransquawk basically ignored the legal process (though it had publicly commented on the lawsuit), leading to a default judgment against Ransquawk. That's what happens when you don't show up in court. This week, the judge officially awarded Dow Jones $5 million in the case, which is again fairly meaningless. In theory, Dow Jones can go after Ransquawk for the money, but it doesn't appear that it has any US-based assets to attack.

While some who don't follow the details and don't understand the nature of a default judgment may make a bigger deal of this, the ruling is kind of meaningless since there was no actual adversarial process here. But, really, the bigger issue is that hot news is just a concept that needs to go away. In an age of social media sharing, retweeting, forwarding, reposting, etc., the idea that someone can claim some sort of exclusive ownership over "breaking" news is just silly and pointless. If your entire value is wrapped up in being a few minutes ahead of the competition, and you can't stand someone repeating the news that you were still first in getting out, you've got other, much more serious problems with your business model.

from the institutionalized-streisanding dept

It's 2014 and do we really need to be reminded that, when you seek to censor something by demanding that it be removed from view, it's really only going to generate that much more attention to the original? I believe there's even a term for that sort of thing. As you may have heard, thanks to a ridiculous ruling in the EU Court of Justice, Google is being forced to start removing links to content, based on submissions by people who wish their past embarrassments would just disappear down the memory hole. The company received tens of thousands of requests for removals based on the new ruling, and last week began removing such links from its index, following a review by the new team the company had to put together to review these requests.

It appears that, as part of its transparency efforts, Google is also telling the websites who are being delinked that they are being delinked over this, because both the BBC and the Guardian have stories up today about how they've had stories removed from Google thanks to the "right to be forgotten" efforts. And, guess what? Both articles dig into what original articles have been removed, making it fairly easy to determine just who was so embarrassed and is now seeking to have that embarrassing past deleted. And, of course, by asking for the content to be removed, these brilliant individuals with embarrassing histories have made both the removal attempt and the original story newsworthy all over again.

First up, is the BBC, which received a notice about one of its articles being removed from search. That article is all about Merrill Lynch chairman Stan O'Neal losing his job. In fact, the only person named in the article is... Stan O'Neal. Take a wild guess what thin-skinned former top executive to a major US financial firm must have issued a "please forget me" request to Google? The BBC's Robert Preston -- author of both articles -- questions why this should be forgotten:

My column describes how O'Neal was forced out of Merrill after the investment bank suffered colossal losses on reckless investments it had made.

Is the data in it "inadequate, irrelevant or no longer relevant"?

Hmmm.

Most people would argue that it is highly relevant for the track record, good or bad, of a business leader to remain on the public record - especially someone widely seen as having played an important role in the worst financial crisis in living memory (Merrill went to the brink of collapse the following year, and was rescued by Bank of America).

In other words, welcome to the new world in Europe, where all sorts of important, truthful and relevant information gets deleted.

Three of the articles, dating from 2010, relate to a now-retired Scottish Premier League referee, Dougie McDonald, who was found to have lied about his reasons for granting a penalty in a Celtic v Dundee United match, the backlash to which prompted his resignation.

The Guardian does searches for McDonald on both the US and UK versions of Google and finds that McDonald's lie is wiped from history over in the UK, while we Americans can still find it, no problem.

It's pretty likely that Paul Baxendale-Walker is the person complaining about that second article, since he's the main subject of that article. The other two... are not clear at all. The Post-It wars story names three individuals: Julien Berissi, Stephane Heude and Emilie Cozette. But none of them are portrayed in any way that would seem negative. It just shows them having some fun by making giant post-it artwork. And the other one is just weird because it's not an actual story, but an index page showing a week of story headlines and opening blurbs -- but apparently whichever article in the list caused the request wasn't directly included itself -- suggesting whoever sent in the request did a pretty bad job of figuring out what to censor.

Either way, both the Guardian and the BBC point out how ridiculous this is. Preston, at the BBC, says this is "confirming the fears of many in the industry" that this will be used "to curb freedom of expression and to suppress legitimate journalism that is in the public interest." Meanwhile, James Ball at the Guardian, notes how troubling this is, and starts to think of ways to deal with it, including highlighting every "deleted" article:

But this isn't enough. The Guardian, like the rest of the media, regularly writes about things people have done which might not be illegal but raise serious political, moral or ethical questions – tax avoidance, for example. These should not be allowed to disappear: to do so is a huge, if indirect, challenge to press freedom. The ruling has created a stopwatch on free expression – our journalism can be found only until someone asks for it to be hidden.

Publishers can and should do more to fight back. One route may be legal action. Others may be looking for search tools and engines outside the EU. Quicker than that is a direct innovation: how about any time a news outlet gets a notification, it tweets a link to the article that's just been disappeared. Would you follow @GdnVanished?

Preston has asked Google how the BBC can appeal, while Ball says the Guardian doesn't believe there's any official appeals process. Either way, it's safe to say that (1) this process is a mess and leading to the censorship of legitimate content and (2) people like Stan O'Neal and Dougie McDonald who thought that they could hide their embarrassing pasts under this ruling may not end up being very happy in the long term.

from the BFGs dept

The being-bad-at-Photoshop arms race continues! For some reason, there appears to be a culture of "fake it 'til you make it" going on with some of our international rivals. Previous iterations include Iran's using Photoshop to ensure that everyone knows one of their new jets can't actually fly, as well as North Korea (of course) transposing several national leaders into photos to pretend like they opened a school for children (like anyone would believe that).

And now we can add China to the list, given that they're piss-poor attempt at manipulating a photo to look like leaders visited a really old women somewhere resulted in the insinuation that Chinese men have been eating their Wheaties and have turned into big, smiling giant-folk.

According to China News (via HugChina), the above photo supposedly features the vice mayor of Ningguo county and other officials "visiting" a 100-year-old woman—a very small one hundred year old woman, surrounded by a halo and giants.

Quick, someone save that happy old lady from the uber-men surrounding her! And these aren't even your ordinary, run-of-the-mill Chinese mega-men, either. They're ghost giants, as evidenced by that last guy on the right how appears to be made of a non-corporeal substance the likes of which hasn't been seen since the Ghostbusters were still employed!

Now, the image and the report have reportedly been taken down to ensure the Chinese people don't fly into a panic about the ensuing gigantic dominance, but wouldn't it be easier for the Chinese government to have actually visited this sweet old lady rather than parry the ensuing laughter over this poor propaganda attempt?

from the urls-we-dig-up dept

It isn't exactly news that newspapers are facing some serious business difficulties. But if you haven't been keeping up with the business of journalism (and who could blame you since most of the news is crap), you might have missed seeing that some tech billionaires are starting to invest in journalistic endeavors. Sure, billionaires have always owned all the major news organizations (eg. Hearst, Bloomberg, Zuckerman), but the key part here is that technology-savvy billionaires are getting into the game. Maybe that small detail will matter. Or Maybe it won't. In case you haven't been reading any of this news, here are some examples of this billionaire buying trend.

from the no,-really? dept

As Techdirt has been pointingout for years, newspaper paywalls make no sense. By stopping people from reading your stories unless they have a subscription, you diminish your influence in the media world, drastically reduce the number of readers and thus make it much harder to generate revenue from them. Paywalls are also a gift to your competitors, as this story in the Guardian indicates:

Mirror Group Digital enjoyed a surge in daily browsers of nearly 20% last month, after [Rupert Murdoch's newspaper] the Sun introduced its website paywall.

The introduction of paywalls for Times and Sunday Times content in 2010 led to a 90% drop in traffic. Online metrics firm SimilarWeb has estimated Sun+ monthly site visits were down by more than 60% in August.

This really isn't rocket science: if you make it harder to read your stories, your competitors would be foolish not to take advantage of this fact to encourage people to move across and read their freely-available reporting instead. Some may call this a race to the bottom, and it is as far as how much you can charge is concerned -- that's just basic economics in the digital world. But that doesn't mean there's a race to the bottom in terms of the quality of the journalism. Indeed, skimping there would be unwise, since it would allow competitors to match you on price and beat you on quality.

The challenge is to use a larger readership to pay for that journalism by earning revenue in other ways -- advertising is currently one of the most popular approaches, but others are possible. However, introducing paywalls makes it much harder to generate money, since the online readership is much smaller -- as the experiences of Murdoch's Times, Sunday Times and the Sun all demonstrate. The subscription revenue produced by the paywall rarely compensates for this loss. It will be interesting to see whether Rupert Murdoch sticks with the paywalled approach, or is forced to remove them in order to compete with flourishing titles like those from Trinity Mirror.

from the content-free-content dept

Around the world, we have been watching the gradual taming of social media, especially in countries where governments keep mainstream media on a tight leash. But even against that background, this news from the Bangkok Post about Vietnam's latest moves to censor online content is pretty extraordinary:

"Personal electronic sites are only allowed to put news owned by that person, and are not allowed to 'quote', 'gather' or summarise information from press organisations or government websites," local media quoted Hoang Vinh Bao, director of the Broadcasting and Electronic Information Department at the Ministry of Information and Communications, as saying.

The ban was approved by Prime Minister Nguyen Tan Dung on July 15, communicated to Vietnamese press late Wednesday, and was due to come into force on Sept 1.

It also bans individuals from providing "general information" on their profiles or blogs.

That's even more extreme than China's approach, which may take down troublesome material as soon as it is put up, but at least allows the possibility of putting it up in the first place. Vietnam's rules mean that online news can only be carried by "official" channels, which are closely regulated. For everyone else, it seems, the Internet must by law become the realm of entirely content-free narcissism -- and pictures of cats.

Fundamental freedoms apply online just as they do offline. Decree 72 appears to be inconsistent with Vietnam's obligations under the International Covenant on Civil and Political Rights, as well as its commitments under the Universal Declaration of Human Rights.

from the while-one-politician-looks-to-stop-it dept

We've talked about procedures within the Defense Department to block computers from accessing the website for The Guardian newspaper -- along with similarly short-sighted moves to apply a sledgehammer approach to pretending that public information isn't really public. I've heard from a few people within the Defense Department who defend this approach on basic procedural grounds of trying to "make sure" that classified info remains classified, but the real problem is considering any publicly revealed documents as still classified. As I've said each time this debate comes up, in the business world, the equivalent situation involving trade secrets or non-disclosure agreements almost always are recognized as null and void if the info becomes public through other means.

However, that's not the way the government works. The latest is that Homeland Security sent around a memo warning employees that merely opening up a Washington Post article about some of the leaks might violate their non-disclosure agreement to "protect National Security Information," and it even says that merely clicking on the story might make the reader "subject to any administrative or legal action from the Government." Got that? Working for the government and merely reading the news about things the government is doing might subject you to legal action.

Stunning.

At least someone in Congress realizes the insanity of all of this. Rep. Grayson, who displayed the very same NSA slides that DHS is warning its employees about in Congress itself, has offered up an amendment to the Defense Appropriations Bill, stating that nothing in the defense appropriations should be used to block employees from reading the news on their own time.

None of the funds made available by this Act may be used to restrict the access of members of the Armed Forces to publically available online news media during morale, welfare, and recreation periods.

While this is one way to deal with the problem, I still think you solve a lot more problems with a basic recognition of reality: if classified documents become public, they shouldn't be considered classified any more, because (a) that's stupid and (b) it actually hinders the ability of government employees to be as knowledgeable as everyone else in the world. Also, Grayson's amendment only applies to the members of the armed forces, but not to civilian employees of the Department of Defense, or any employees of Homeland Security, who are subject to the crazy threats above.

from the total-failure dept

Plenty of people rightly mocked the news a few years ago that the Associated Press was working on a plan to "DRM the news." The idea was to put some sort of licensing mechanism together to get news aggregators to pay to promote their news. This seemed incredibly dumb for a whole host of reasons. It added no value. Its only purpose was to limit the value for everyone in the system by putting a tollbooth where none needed to exist. When it finally launched last year to great fanfare in the newspaper world, under the name "NewsRight," we pointed out that, once again, it made no sense. Basically, the whole focus appeared to be on getting bloggers and aggregators to pay for a license they legally did not need.

Since the launch... we heard absolutely nothing about NewsRight. There was a launch, with its newspaper backers claiming it was some huge moment for newspapers, and then nothing.

Well, until now, when we find out that NewsRight quietly shut down. Apparently, among its many problems, many of the big name news organization that owned NewsRight wouldn't even include their own works as part of the "license" because they feared cannibalizing revenue from other sources. So, take legacy companies that are backwards looking, combine it with a licensing scheme based on no legal right, a lack of any actual added value and (finally) mix in players who are scared of cannibalizing some cash cow... and it adds up to an easy failure.

from the ouchy dept

Perhaps it's time we codified this, but it appears that for every horrible occurrence there will be an unequal, disproportionately large reaction to it. I humbly suggest we refer to this as Geigner's Law, because why the hell should Mike and Godwin be the only people with their name's attached to things? Regardless, it seems to me that this odd rule has been more greatly followed in the age of the internet. Terrorism got you down? Well, then obviously everyone should censor all things even remotely terrorist. A bunch of people lost their marbles and went on shooting rampages? Surely this means protected speech like videogames should face the consequences.

And, now that anyone remotely interested in college basketball had to spend Sunday evening figuring out how to get their previously eaten Easter dinner out of their carpeting thanks to Kevin Ware's disgustingly awful injury on live television, it's apparently time to call out any news outlet that showed the injury in the aftermath.

Don’t give me the Deadspin “Warning: Very Gross” alert either, as though that somehow absolves you from any sin; hell, the video embedded in that Deadspin post is stuck on a preview frame that pretty clearly shows Ware’s shin bone sticking through his leg. Even if you don’t want to watch the video, you don’t really have a choice.

Sites like The Big Lead may have one-upped even the freeze frame preview; by initially including a fully animated GIF on their immediate blog post about the injury before pulling that GIF in favor of just the reaction shot of the Louisville bench, TBL managed to not only generate thousands (and possibly tens of thousands) of hits, but then were able to play the high and mighty, “we’re not going to show that anymore” card a couple hours later – presumably after searches for “Kevin Ware Injury” had died down. It’s hypocrisy of the highest magnitude.

Look, let me be super clear here: the Ware injury footage is brutal. The guy's shin bone snapped in half and the angle of the shots show it with cookie-tossing clarity. In my opinion, you shouldn't watch it, unless you've ingested some kind of poison and you're looking to throw it up. I wouldn't even think of embedding the video here. It's that bad.

And that it's that bad is also my opinion. The simple fact of the matter is that sports is news, this injury is news, and the footage of it is news. We can argue all we want about whether that footage has value for the news consumer, and I'd argue it does as a matter of public inquiry, but that it's news cannot be doubted. There really is no argument to the contrary, as the article's author themselves note.

I don’t care that it’s “newsworthy” – write the story, and let the gawking onlookers go find the video for themselves.

Follow the two logical problems in these statements. First, don't show the footage, because everyone can already find it everywhere else. Surely calling on the media to censor themselves would never result in calls for similar censorship elsewhere, eventually disappearing this and perhaps even more newsworthy footage altogether. What could possibly go wrong? Secondly, if uncomfortable but newsworthy footage can be buried for something like sports under the notion that nobody should be getting "clicks" or money as a result of someone else's pain, does that also hold true for news items about war, gun-violence, murder, drugs, etc.?

The fact is that the original premise was right, just pointed at the wrong target. Yes, in the age of the internet, people have choices in how they consume the news. What that means is not that the media should self-censor upsetting footage. It means that anyone, like me, who wants the news without that footage can indeed get it elsewhere.